The City of Edinburgh Council v RO and RD [2016] SAC (Civ) 15 (Sheriff Appeal Court, 29 November 2016)

Background: Appeals by local authority from a decision of sheriff to refuse applications for permanence orders with authority to adopt.

Held: The court emphasised the importance of permanence cases:

“Sheriffs are aware of the heavy burden placed upon them in discharging their judicial function in this area of law and practice. Cases involving state intervention in family life which seek to bring about the severing of family ties are often the most important in a sheriff’s caseload. … Permanence order applications are therefore some of the most anxious decisions which a sheriff will make. That is not only because they involve children; it is also because they are, perhaps uniquely, an exercise in deciding not just what has happened but also what is likely to happen in the future.” [2]

The court also considered duties placed on social workers:

“… it is not only the sheriffs who have to apply the law; social workers must also do so. They will doubtless derive assistance from their training and experience but they also must apply the detailed statutory provisions set out in the relevant legislation, particularly in the present context the various rules contained within the Adoption and Children (Scotland) Act 2007. And in doing that, it is insufficient for them simply to ask the question: “What is in the best interests of the child?” – the paramount consideration … They must also take into account the other statutory provisions and, crucially, the jurisprudence which has developed since the Act came into force. Accordingly, in their day to day work they must repeatedly ask themselves such questions as: “What is the minimum intervention we should make in the life of this child?”, and the essential subsidiary question: “What else could we do to avoid a more drastic form of order such as adoption?” It would be an understandable reaction for a social worker to decide that the safety first approach is to sever the relationship between the child and the parent; it would be all too easy to conclude that a drastic consequence for a child is much more likely to become a reality if a child is left in the supervised care of a parent. But that would be a breach of duty and, from the particular perspective of a court, a gross failure to apply the law.” [3]

“We are troubled that in this case as in others which come before the courts the social workers decide to go down one path and appear unwilling to keep under continual review the objective of preserving personal relations between parents and children and to ask the questions which the law requires them to do, especially where options short of adoption would be sufficient intervention in family life.” [4]

In addition, the court clarified its own role:

“… in the absence of some other identifiable error such as a material error of law or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable failure to consider relevant evidence, the appellate court will interfere with the findings of fact made by a trial judge only if satisfied that his decision cannot reasonably be explained or justified. That is a high test. In relation to appeals against decisions in applications for permanence orders, the appellate court will interfere with the decision of the judge at first instance in his or her consideration of the threshold test in section 84(5)(c) of the 2007 Act only if that judge was plainly wrong.” [5]

See also paragraphs [7] and [8] on questions to consider in permanence cases.